Gun Rights with Reference to the History - Essay Example

This paper consists of three parts. First part deals with the gun debate in favor of gun rights with reference to history of second Amendment and US case law. Second part discusses the concept of distribution of powers and implications of US constitution ratifications. Final part explains freedom of expression as most important amendment and its application especially on students. Part 1 Does gun ownership cause or prevent crime?  How should the Second Amendment be interpreted?  What should the poise between an individual's right of self defense through gun ownership and the People's interest in maintaining public safety? Political arguments about gun rights fall into two basic categories, first, does the government have the authority to regulate guns, and second, if it does, is it effective public policy to regulate guns? (Spitzer, 1995). Gun debate refers to a continuing political and social debate concerning both the constraint and accessibility of firearms within the United States. It has been among the most controversial and intractable issues in American politics. The debate has been distinguished by an impasse between an individual right to bear arms based on the second amendment and the accountability of government to avert crime, preserve order and protect the welfare of its residents. The right to own a gun and defend oneself is considered by some as a central tenet of the American identity (Spitzer, 1995). The two early state court cases, Bliss and Buzzard, set the debate in interpreting the Second Amendment, i.e. whether it protected an Individual Right or a Collective Right and occupied the American legal experts thinking for years to come .A debate about how to interpret the Second Amendment evolved through the decades and remained unresolved until the 2008 District of Columbia v. Heller U.S. Supreme Court decision (Cornell , 2006). Gun control advocates believe that right does not extend to ownership of military style firearms that are otherwise known as assault weapons. They also support measures intended to curb gun related violence, such as mandatory child safety locks, background checks on those wishing to purchase a gun, limits on the number of guns a person can buy and raising the age limit for gun ownership. Gun rights groups maintain that bans on the sale of certain types of weapons have not proved effective in reducing violent crime, and that proposals for stricter background checks at gun shows are designed to eliminate gun shows themselves. Some gun manufacturers have volunteered support for safety locks, but the NRA has criticized safety locks for placing an undue burden on gun manufacturers without a proven benefit to the public (Crothers, 2003). The first category, collectively known as rights-based arguments, consist of Second Amendment arguments, state constitution arguments, right of self-defense arguments, and security against tyranny and invasion arguments. Public policy arguments, the second category of arguments, revolve around the importance of a militia, the reduction of gun violence and firearm deaths, and also can include arguments regarding security against foreign invasions. On June 26, 2008, in District of Columbia v. Heller, the United States Supreme Court affirmed, by a 5-4 vote, the decision of the D.C. Circuit Court of Appeals. This decision struck down the D.C. gun law. It also clarifies the scope of the Second Amendment to the United States Constitution, stating that it stipulates an individual right irrespective of membership in a militia. However, the court made it clear that like other rights, the right to bear arms is not without limitations, leaving open the prospect of governmental regulation. The decision declined to rule on the incorporation of the Second Amendment, leaving its applicability to the states unsettled "While the status of the Second Amendment within the twentieth-century incorporation debate is a matter of importance for the many challenges to state gun control laws, it is an issue that we need not decide.” The NRA called the ruling a "significant victory for individual... rights." The Brady Campaign to Prevent Handgun Violence called it "judicial activism at its worst." June 28, 2010, Chicago gun control law struck down 5 to 4. "The Fourteenth Amendment makes the Second Amendment right to keep and bear arms fully applicable to the States." I believe that stricter gun control laws do not reduce crime. Guns save lives. Guns don't kill people, people kill people. When guns are outlawed, only outlaws will have guns. However, some pro-gun control might say that guns make it easier for people to kill, and guns make harm more accessible to people. We have to consider that people are using the guns to harm others. How, then, will people defend themselves? Rape victims are mostly female and physically weaker than their predators. What is a quick way to bridge the gap between the physicality? A victim with a gun is far more likely to have a winning chance to defend themselves. To the weak, easily victimized, guns are a way for them to give themselves a fighting chance. Guns are a form of liberty. For there to be stricter gun control laws, we are putting more power into our governments' hands. What makes America a democracy is that the people hold the power? To hinder America's accessibility to arms is to hinder America's liberty. George Washington proposed that well regulated militia would consist of all able bodied men (Head, 2008). Today some critics believe that 2nd amendment is misconstrued, and an individual’s right to bear arm is not clearly stated and cannot be enforced. However in US v Emerson, Judge Sam R. Cummins stated “ Rights of 2nd amendment should e zealously guarded as other liberties in Bills of right” . Just because we have a problem doesn't mean there's a solution to it. Stricter gun control laws are not a solution. My final argument is that yes, we have a problem, but the proposed solution gun control is not likely to work. Part 2 The framers of the American Constitution were concerned with individual liberty “life, liberty and the pursuit of happiness.” While democracy was a necessary stipulation for the protection of rights, it could itself relapse into the tyranny of the majority. In Federalist Number 10, James Madison articulates the view that rights are better safeguarded in an extended republic, in which the existence and representation of many interests would encourage a more deliberative decision making in which the public good and the rights of the minor party are protected. The framers recognized that in case of consolidation of power in the hands of outlying few, federal government could disintegrate into imperial rule, and might pose threat to the public interest and individual rights. The solution was federation, in which the states would continue to be responsible for most domestic policy making. While some argue that the United States operated in this dual manner during its early development, others suggest that there was more overlap in the actual operations of the state and federal governments than the dualistic model suggests. Whatever are the merits of these historical arguments, the actual functioning of modern American federalism is clearly better characterized as cooperative. By the latter half of the twentieth century there was scarcely a policy area in which the federal government, the states, and even local government were not involved. Because federal laws are the supreme law of the land, and because of the federal government’s very substantial financial resources, some argue that the federal government has become so dominant that contemporary American federalism is no longer cooperative but, rather, has become permissive, with the states exercising only those powers permitted to them by the federal government (Michael and John, 1981). Whether the actual distribution of powers and responsibilities is consistent with the design of the original Constitution is, of course, arguable. According to James Madison in Federalist No. 45, “The powers delegated ... to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects ... The powers reserved to the several States will extend to all the objects which ... concern the lives, liberties, and properties of the people, and the internal order, improvements, and prosperity of the State.” The extent of federal activities has expanded immensely, and the jagged distinction between federal and state roles suggested by Madison has become blurred. While there are some who conclude that the actual functioning of American federalism is no longer consistent with the values implanted in the original Constitution, there are others who assert that the U.S. Constitution is a living document, wide enough to be interpreted and adjusted to the wants of each generation. Bolstered by victory in the war, the ensuing constitutional amendments, westward expansion, and quick industrialization, the federal government of the twentieth century was much stronger than was that of the nineteenth century. Similarly, it is argued that the American federal union was challenged by excessive centralization during the period between the 1930s and the 1960s. Beginning in the 1960s most states developed relatively stable revenue systems, modernized their governmental institutions, created modern and professional administrations, and became representative of their populations. By the 1980s the states were generally strong and representative constitutional polities with the financial and political resources necessary to play an important policy-making role within the context of American federalism. By way of conclusion one may note briefly that the actual distribution of powers and responsibilities in the American federal system is likely to be affected by three contemporary challenges: constitutional, political, and international. Beginning in 1937 the U.S. Supreme Court began to interpret the interstate commerce powers of Congress so broadly that its authority seemed unlimited. In fact, from 1937 through 1995, there was only a single instance in which the Court held that Congress had exceeded its delegated powers, and even that decision was reversed nine years later (Daniel, 1987). Furthermore, in 1985 the Court seemed to suggest, in Garcia v. San Antonio Metropolitan Transit Authority, that questions of the scope of federal power should be resolved through the political process rather than through constitutional litigation. In 1995, however, the Court, in United States v. Lopez, 514 U.S. 549, invalidated the federal Gun-Free School Zones Act, 1990, as going beyond Congress’s power under the interstate commerce clause .This decision, and a number of other decisions supporting the states, was decided by a vote of five-to-four, so whether it marks the beginning of the end of the Court’s sixty-year pattern of upholding the exercise of federal authority or whether it is a temporary aberration will depend on future appointments to the Supreme Court and on political dynamics generally (Daniel, 1987). Second, until the 1960s U.S. representatives and senators were generally closely tied to their states political parties. The decline of American political parties, however, has weakened this linkage, and members of Congress have become much more subject to the pressures of nationally organized interest groups. As a consequence, Congress is less reflective of state interests and more likely to enact legislation in response to perceived national demands, often expanding federal authority and reducing state power. Even though Supreme Court has drawn back significantly from judicial review of federal legislation on grounds of federalism, yet it is difficult to conclude that state interests are best protected through political institutions like Congress. Part 3 In my humble opinion, first amendment is the most important in the bills of right. This part tends to analyze the academic opinion and related case law to unfold paradoxes entailed in freedom of expression with particular focus on college campuses. How can we draw a balance between rights and obligations under the garb of freedom of expression? One’s unpopular speech is other’s free speech. Is there a general tendency in America to hide behind first amendment? This essay tends to analyze these questions by comparing two essays from Stanley Fish and Stuart Taylor with application of first amendment in college campuses in order to seek its plausible role. Stanley Fish (2003) argues that there is general tendency in America to hide behind first amendment. He is clearly troubled by the double standards which prevail in college campuses seeking refuge under attire of first amendment. He advocates acceptance of consequences of one’s speech as there is never an obligation to say anything at any point of time. On the contrary, Stuart Taylor Jr. (2003) argues that college campus policies violate the First Amendment rights of students and one shouldn’t be punished or penalized for what he/she say. Although, Taylor and Fish both make evenhanded arguments, Taylor’s arguments are more convincing because of his rational of a more comprehensive view of the First Amendment. Fish (2003) initial argument starts from Fredrick Schauer description of first amendment opportunism i.e., tendency to hide behind the first amendment. “Such claims are just moral, social, economical, ideological assertions but do not have any special philosophical and historical affinity with first amendment” (Fish, 2003). So, what was the philosophy which shaped first amendment? Wasn’t it to foster a society and land of free from tyranny? It was the dire need for protection of rights of all Americans to express their moral, religious, political, and other convictions / opinions that envisaged First Amendment. This philosophy shaped political, cultural, moral and social values promoting freedom of expression over the years. Critical thinking and approach is evident from Supreme Court’s interpretation of First amendment in series of judgments over the years. It is important to consider these two landmark judgments of Supreme Court regarding freedom of expression. In Terminiello v. Chicago, 337 U.S. 1 (1949), the United States Supreme Court noted that: "A function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech . . . is . . . protected against censorship or punishment . . . . There is no room under our Constitution for a more restrictive view." Likewise court held in Simon & Schuster, Inc. v. Members of New York State Crime Victims Bd., 502 U.S. 105 (1991): "The fact that society may find speech offensive is not a sufficient reason for suppressing it.  Indeed, if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection."  Therefore, it does not seem appropriate to assert that these claims have no philosophical and historical affinity with First Amendment. Fish is clearly troubled by the double standards practiced in campus. He illustrates it with example of editors in campuses. He believes that an editor exercise judgment when he decides what to publish or not and it is different from silencing and self censorship. Silencing means to compel or reduce to silence while censorship implies control exercised repressively (merriam-webster). Fish argues that no one is silenced because a single outlet declines to publish their work but still has choice to say what he wants to say. He believes “Silencing occurs when that outlet (or any other) is forbidden by the state to publish him on pain of legal action; censorship is the same”. He further adds “Self-censorship, in short, is not a crime or a moral failing; it is a responsibility” I agree with Fish on this account that there needs to be more responsibility and people should not be able to rely on the Free Speech Amendment to do it for them. There is no First Amendment issue here, just an issue of editorial judgment and the consequences of exercising it. I think Fish underestimates the connection of rights and obligations here. The right of freedom of expression generates obligation to recognize it. Editors have the obligation of responsible journalism. He exercises it through his judgment but under the ambit of responsible journalism. He is obligated to cater the freedom of expression. Taylor believes that students are silenced when they try to voice out their opinions on school campus because of the policies that exists on campus. He questions the idea of censorship that pollutes nation’s campuses and its effects on student’s chances of getting into grad schools. Management at campus may argue that it is responsible for safe environment for students. But should it be at the expense of freedom of choice. Should it restrict a student from an outlet that should be accessible to him for expression of his views? He points out that though situation has improved after number of legal battles but censorship still persists under the guise of enforcing indistinct rules against racial or sexual harassment. Administration interprets these rules to include any speech that offends minority groups and enforce it with no facade of fairness. Their imprecision infringe not only students' First Amendment rights but may violate contractual rights in the case of private universities that publicize themselves as dedicated to liberated and open debate. Last but not the least, campus censors consign a basic error in assuming that fidelity to civil liberties requires protecting traditionally subordinated factions from harsh stance by repressing the civil liberties of others. They both recognize that public speech is being affected. Both of them know the importance of freedom of speech. Both agree that unpopular speech should be protected like popular speech on equal footings. Both of them are troubled by double standards displayed at college campuses. Editor’s choice of publishing articles is not regulated by freedom of expression but is influenced by their judgment. On the other hand, universities promote ideas of free and fair debate but suppress the freedom of expression of one group at the expense of other. However they differ on few accounts as well. Fish emphasize acceptance of consequences by students as it is right to speak one’s mind. On the contrary, Taylor believes that students should not be penalized for exercising their right of freedom of expression. Fish believes that if an outlet prohibits publication it does not amount to censorship but Taylor condemns these policies as direct infringements to freedom of expression. Fish downplays rights and obligations but Taylor considers right of freedom of expression necessitating obligation of recognition of this fundamental right. Taylor does encompass the rationale of rights and obligations better than Fish. Though it is understandable that colleges are also responsible for grooming of students but this should not be done at the expense of their legal rights. Society needs to be more tolerant to the unpopular speeches. Consensus developed through accommodation of difference of opinions brings cohesion to the society and has long lasting impact. It is for us to decide that what place we shall give to toleration in context of our cultural and social goals so that there may be no room for doubt or ambiguity. References . Spitzer, Robert J. (1995). The Politics of Gun Control. US: Chatham House Publishers. Cornell, Saul (2006). A WELL-REGULATED MILITIA – The Founding Fathers and the Origins of Gun Control in America. New York: Oxford University Press. Crothers, Lane (2003). Rage on the right: the American militia movement from Ruby Ridge to homeland security. Lanham, Md: Rowman & Littlefield. Head, T. (2009). Civil Liberties. US:One world. Michael D. Reagan and John G. Sanzone (1981). The New Federalism. New York: Oxford University Press. Daniel, J. Elazar (1987). Exploring Federalism. Tuscaloosa, AL: University of Alabama Press. Fish, Stanley (13 June, 2003). “The Free speech Follies" The Chronicle of Higher education. Taylor, Stuart (14 July, 2003). “How campus censors squelch freedom of speech” The National Journal. Merriam-Webster, 2011. Accessed 2 November 2011, Read More